Citation Nr: 0844293
Decision Date: 12/23/08 Archive Date: 12/31/08
DOCKET NO. 06-23 458 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to an effective date earlier than December 9,
1999, for the grant of entitlement to service connection for
a right knee disability, to include whether there was clear
and unmistakable error (CUE) in a February 1977 rating
decision.
2. Entitlement to an effective date earlier than December 9,
1999, for the grant of entitlement to service connection for
a left knee disability, to include whether there was clear
and unmistakable error (CUE) in a February 1977 rating
decision.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky
INTRODUCTION
The veteran had active service from August 1966 to April
1969.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from rating decisions of the Department of Veterans
Affairs (VA), Regional Office (RO) in Cleveland, Ohio.
A May 2005 rating decision granted entitlement to service
connection for degenerative joint disease of the right and
left knees, and assigned a 10 percent disability evaluation
per knee, effective December 9, 1999. In June 2005, the
veteran disagreed with the effective date assigned. An
October 2005 rating decision denied the veteran's claim of
entitlement to an earlier effective date and concluded that
clear and unmistakable error (CUE) was not present in a
previous, February 1977 rating decision, which denied the
veteran's claims of entitlement to service connection for
right and left knee disabilities.
FINDINGS OF FACT
1. An initial claim for service connection for right and
left knee disabilities was received on October 18, 1976.
2. In a February 1977 rating decision, the RO denied service
connection for right and left knee disabilities, and the
veteran did not appeal.
3. Additional service treatment records relevant to the
claim for service connection for right and left knee
disabilities were received in August 2000 and February 2002.
4. The presence of chronic right and left knee disabilities
was demonstrated in the service treatment records.
CONCLUSIONS OF LAW
1. The criteria for an effective date of October 18, 1976,
for the grant of service connection for right and left knee
disabilities, have been met. 38 U.S.C.A. §§ 5103, 5103A,
5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.155,
3.156(c), 3.159, 3.400 (2008).
2. The February 1977 rating decision that did not grant the
veteran's claim for service connection for right and left
knee disabilities is not final, and the claim was
"reconsidered." 38 U.S.C.A. § 4005 (West 1976); 38
U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105(a),
3.156(c) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Notice
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2008);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006).
On March 3, 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess/Hartman holds that the
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a "service
connection" claim. As previously defined by the courts,
those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for "service connection,"
therefore, the Department of Veterans Affairs (VA) is
required to review the information and the evidence presented
with the claim and to provide the claimant with notice of
what information and evidence not previously provided, if
any, will assist in substantiating or is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application. This includes notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Here the veteran is appealing the effective date assignment
as to his right and left knee disabilities. In this regard,
because the May 2005 rating decision granted the veteran's
claims of entitlement to service connection, such claims are
now substantiated. His filing of a notice of disagreement as
to the December 1999 effective date determination does not
trigger additional notice obligations under 38 U.S.C.A. §
5103(a). Rather, the veteran's appeal as to the effective
date assignment here triggers VA's statutory duties under 38
U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under
38 C.F.R. § 3.103. As a consequence, VA is only required to
advise the veteran of what is necessary to obtain the maximum
benefit allowed by the evidence and the law. This has been
accomplished here, as will be discussed below.
The statement of the case (SOC), under the heading "Pertinent
Laws; Regulations; Rating Schedule Provisions," set forth
the relevant law and regulations for assignment of the
effective date. In addition, an August 2005 letter and the
June 2006 SOC explained the basis for determining an
effective date upon the grant of service connection, in
compliance with Dingess/Hartman. Therefore, the Board finds
that the appellant has been informed of what was necessary to
achieve an earlier effective date for the grant of service-
connection for the disability at issue. See Bernard v.
Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses
a question that has not been addressed by the agency of
original jurisdiction, i.e., the RO, the Board must consider
whether the veteran has been prejudiced thereby). See also
Soyini v. Derwinski, 1 Vet. App. 540 (1991) (a remand is
inappropriate where there is no possibility of any benefit
flowing to the veteran).
With regard to the veteran's contention of CUE in the RO's
February 1977 rating decision, the Board notes that, as will
be explained below, such matter is rendered moot by the law
in this case. The United States Court of Appeals for
Veterans Claims (Court) has held that where the law, and not
the underlying facts or development of the facts are
dispositive in a matter, the VCAA can have no effect on the
appeal. See Manning v. Principi, 16 Vet. App. 534, 542
(2002). See also Smith v. Gober, 14 Vet. App. 227 (2002)
(VCAA has no effect on appeal limited to interpretation
of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA
not applicable where law, not factual evidence, is
dispositive). Indeed, the Court has specifically held that
the VCAA has no application to allegations of CUE as a matter
of law, regardless of whether the Board or RO issued the
earlier decision in question. See Livesay v. Principi, 15
Vet. App. 165, 178-79 (2001) (en banc); Parker v. Principi,
15 Vet. App. 407 (2002). See, too, 38 U.S.C.A. §§ 5109A(a),
7111(a); 38 C.F.R. §§ 20.1400-20.1411. Therefore, the Board
finds that no further action is necessary under the VCAA on
the CUE issue.
Duty to Assist
With regard to the duty to assist, the claims file contains
the veteran's service medical records and reports of VA and
private post-service treatment and examination.
Additionally, the claims file contains the veteran's own
statements in support of his claims, including a transcript
of the veteran's hearing before the undersigned Veterans Law
Judge (VLJ). The Board has carefully reviewed such
statements and concludes that he has not identified further
evidence not already of record. The Board has also perused
the medical records for references to additional treatment
reports not of record for the time period at issue, but has
found nothing to suggest that there is any outstanding
evidence with respect to the veteran's claims.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the veteran in developing the facts
pertinent to his claims. Essentially, all available evidence
that could substantiate the claims has been obtained. There
is no indication in the file that there are additional
relevant records that have not yet been obtained.
Legal Criteria
Earlier Effective Date
The statutory and regulatory guidelines for determining the
effective date of an award of disability compensation are set
forth in 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400
(2008). Except as otherwise provided, the effective date of
an evaluation and an award of compensation based on an
original claim, a claim reopened after a final disallowance,
or a claim for increase will be the date the claim was
received or the date entitlement arose, whichever is later.
See 38 C.F.R. § 3.400.
The effective date of an award of service connection will be
the day following the date of separation from service - if
the veteran filed a claim within one year after service.
Otherwise, the effective date will be the date of receipt of
his claim. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. §
3.400(b)(2).
The applicable statutory and regulatory provisions require
that VA look to all communications from the veteran that may
be interpreted as applications or claims, both formal and
informal, for benefits. VA is required to identify and act
on informal claims for benefits. See 38 U.S.C.A. § 5102;
38 C.F.R. § 3.1(p), 3.155(a). See also Servello v.
Derwinski, 3 Vet. App. 196, 198-200 (1992). An informal
claim must identify the benefit sought. See 38 C.F.R.
§ 3.155(a).
In order for benefits to be paid under the laws administered
by the VA, a specific claim in the form prescribed by the
Secretary must be filed. See 38 U.S.C.A. § 5101; 38 C.F.R.
§ 3.151(a). All claims for benefits filed with the VA,
formal or informal, must be in writing. See Rodriguez v.
West, 189 F.3d 1351 (Fed. Cir. 1999).
The Board notes that during the pendency of this appeal,
revisions were made to 38 C.F.R. §§ 3.156(c) and 3.400(q)
effective on October 6, 2006. 38 C.F.R. § 3.156(c) was
revised to establish clearer rules regarding reconsideration
of decisions on the basis of newly discovered service
department records. The substance of 38 C.F.R. § 3.400(q) is
now included in the revised § 3.156(c).
Prior to the revision, 38 C.F.R. § 3.400(q)(2) governed the
effective date of benefits awarded when VA reconsidered a
claim based on newly discovered service department records.
The prior 38 C.F.R. § 3.400(q)(1) is redesignated as new §§
3.400(q)(1) and (2) without substantive change. See 70 Fed.
Reg. 35388 (2005). The Board therefore finds there is no
prejudice to the veteran in considering the revised 38 C.F.R.
§ 3.156(c).
The provisions of 38 C.F.R. §§ 3.156(c) and 3.400(q)(2), in
effect prior to October 6, 2006, together established an
exception to the general effective date rule in 38 C.F.R. §
3.400 which provides that the effective date of an award of
benefits will be the date of claim or the date entitlement
arose, whichever is later. The exception applies when VA
receives official service department records that were
unavailable at the time that VA previously decided a claim
for a benefit and those records lead VA to award a benefit
that was not granted in the previous decision. Under this
exception, the effective date of such an award may relate
back to the decision of the original claim or date
entitlement arose, which ever is later, even though the
decision on that claim may be final under 38 C.F.R. § 3.104.
As noted, 38 C.F.R. § 3.156(c) was revised to clarify VA's
current practice that when VA receives service department
records that were unavailable at the time of the prior
decision, VA may reconsider the prior decision, and the
effective date assigned will relate back to the date of the
original claim, or the date entitlement arose, whichever is
later. The pertinent revisions include removal of the "new
and material" requirement in 38 C.F.R. § 3.156(c). Because
the rule regarding effective date of an award of benefits
based all or in part on newly-discovered service department
records is now included in 38 C.F.R. § 3.156(c), the
effective date provision was removed from 38 C.F.R. §
3.400(q).
Effective on or after October 6, 2006, 38 C.F.R. §
3.156(c)(1) provides that notwithstanding any other section
in this part, at any time after VA issues a decision on a
claim, if VA receives or associates with the claims file
relevant official service department records that existed and
had not been associated with the claims file when VA first
decided the claim, VA will reconsider the claim,
notwithstanding paragraph (a) of this section. Further, an
award based all or in part on the records identified by
paragraph (c)(1) of this section is effective on the date
entitlement arose or the date VA received the previously
decided claim, whichever is later, or such other date as may
be authorized by the provisions of this part applicable to
the previously decided claim. 38 C.F.R. § 3.156(c)(3) (2007).
Clear and Unmistakable Error
Previous determinations which are final and binding,
including decisions of service connection, degree of
disability, age, marriage, relationship, service, dependency,
line of duty, and other issues, will be accepted as correct
in the absence of clear and unmistakable error. Where
evidence establishes such error, the prior decision will be
reversed or amended. 38 C.F.R. § 3.105(a) (2008).
The question of whether CUE is present in a prior
determination is analyzed under a three-pronged test. First,
it must be determined whether either the correct facts,
as they were known at the time, were not before the
adjudicator (that is, more than a simple disagreement as to
how the facts were weighed and evaluated) or the statutory or
regulatory provisions extant at that time were incorrectly
applied. Second, the error must be "undebatable" and of
the sort "which, had it not been made, would have manifestly
changed the outcome at the time it was made." Third, a
determination that there was CUE must be based on the record
and the law that existed at the time of the prior
adjudication in question. See Damrel v. Brown, 6 Vet. App.
242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310,
313-14 (1992) (en banc)).
According to the Court, CUE is a very specific and rare kind
of error. "It is the kind of error, of fact or law, that
when called to the attention of later reviewers compels the
conclusion, to which reasonable minds could not differ, that
the result would have been manifestly different but for the
error. Thus, even where the premise of error is accepted, if
it is not absolutely clear that a different result would have
ensued, the error complained of cannot be, ipso facto, clear
and unmistakable." See Fugo v. Brown, 6 Vet. App. 40, 43-44
(1993) (citing Russell at 313).
The Court has defined CUE as administrative failure to apply
the correct statutory and regulatory provisions to the
correct and relevant facts. See Oppenheimer v. Derwinski, 1
Vet. App. 370, 372 (1992). However, the mere
misinterpretation of facts does not constitute CUE. See
Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). The
Court has also held that the failure to fulfill the duty to
assist does not constitute CUE. See Crippen v. Brown, 9 Vet.
App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377
(1994). A disagreement with how the Board evaluated the
facts is inadequate to raise the claim of CUE. Luallen v.
Brown, 8 Vet. App. 92, 95 (1995).
Analysis
The veteran's initial claim for service connection for right
and left knee disabilities was received on October 18, 1976.
A February 1977 rating decision denied his claims. In March
1977, the RO sent the veteran a letter notifying him of the
unfavorable decision and apprising him of his procedural and
appellate rights, but he did not appeal that decision.
Generally, in the absence of CUE (as discussed further
below), the February 1977 RO denial would normally become
final and binding on him based on the evidence then of
record. See 38 U.S.C.A. § 4005 (within one year from the
date of mailing the notice of the RO's decision, a notice of
disagreement (NOD) must be filed to initiate an appeal of any
issue adjudicated by the RO). See also 38 U.S.C.A. § 7105(c)
(If an NOD is not filed within one year of notice of a RO
decision, the decision is final and binding on the veteran
based on the evidence then of record).
In December 1999, the veteran filed a petition to reopen
these previously denied claims for service connection.
Following a November 2002 decision by the Board, which
reopened the veteran's claims, an October 2005 rating
decision granted the veteran service connection for
degenerative joint disease of the right and left knees, and
assigned a 10 percent disability rating for each knee,
effective December 9, 1999.
The veteran contends that an earlier effective date,
retroactive to 1976, is warranted in this case. The veteran
and his representative contend that because the February 1977
denial of his claims was predicated on the absence of
treatment for the veteran's claimed knee disabilities during
his military service, as well as the absence of any medical
evidence demonstrating a chronic disability of either knee
which was incurred or aggravated during the veteran's
service, there was error. According to the veteran, the RO
ignored service medical records showing right and left knee
injuries during his service. In the alternative, the veteran
and his representative argue that the February 1977 rating
decision contained CUE because the RO failed to consider both
the veteran's complaints of a chronic disability when denying
his claim of entitlement to right and left knee disabilities
on the basis of a lack of current disability and a lack of
medical nexus evidence linking his claimed knee disabilities
to his military service. According to the veteran, this
warrants a finding of CUE; however, this argument is
misplaced.
It is indeed true that the RO's February 1977 denial of the
veteran's claim was based on the absence of an objective
finding of treatment for his right and left knees during his
military service. Indeed, the claimed knee disabilities were
not shown in the veteran's then available service medical
records. Rather, additional service treatment records, not
previously of record, received in August 2000 and February
2002, demonstrated the presence of chronic right and left
knee disabilities in service, including diagnosed as
chondromalacia patella. Such was sufficient to establish
entitlement to service connection for chronic right and left
knee disabilities, albeit later diagnosed as degenerative
joint disease.
As noted above, if at any time after VA issues a decision on
a claim (i.e. in February 1977), VA receives or associates
with the claims file relevant official service department
records that existed, and had not been associated with the
claims file when VA first decided the claim, VA will
reconsider the claim, notwithstanding paragraph (a) of this
section. Further, an award based all or in part on the
records identified by paragraph (c)(1) of this section is
effective on the date entitlement arose or the date VA
received the previously decided claim, whichever is later.
38 C.F.R. § 3.156(c)(3). As relevant official service
department records that existed, and had not been associated
with the claims file when VA decided the claim in February
1977, were received into the record in August 2000 and
October 2002, the VA was required to reconsider (not reopen)
the veteran's claim for service connection for right and left
knee disabilities, originally received on October 18, 1976.
As such, the February 1977 RO denial is not final, and any
discussion as to CUE as to such RO decision is rendered moot,
and not appropriate.
The award of service connection for the right and left knee
disabilities, by a rating decision in May 2005, was based on
the additional service treatment records, and was made
pursuant to reconsideration of the veteran's originally
denied claim for service connection received on October 18,
1976. As such, as noted above, the effective date for such
award is the date entitlement arose or the date VA received
the previously decided claim (i.e. October 18, 1976),
whichever is later. As the presence of chronic right and
left knee disabilities (chondromalacia patella) was
clinically demonstrated in the service medical records,
entitlement arose in service. As the date the VA received
the previously decided claim, October 18, 1976, is the later,
and is more than one year after the veteran's separation from
service, it is the appropriate effective date for the award
of service connection for the right and left knee
disabilities.
In view of the foregoing, the Board finds that the evidence
of record, considered in conjunction with the applicable law,
supports the grant of an earlier effective date of October
18, 1976 for the award of service connection for degenerative
joint disease of the right and left knees.
ORDER
Entitlement to an effective date of October 18, 1976, for
service connection of degenerative joint disease of the right
knee is granted.
Entitlement to an effective date of October 18, 1976, for
service connection of degenerative joint disease of the left
knee is granted.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs